Has Blake Lively really “lost” the case against Justin Baldoni?

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0:43Shaun Kent:Hello and welcome back to Fame Under Fire from BBC Sounds with me, Anushka Matanda-Dowdy. Justin Baldoni has won and beaten Blake Lively. At least that's what the internet has decided. But everything is not what it seems. Yes, 10 of Lively's claims have been thrown out, including sexual harassment, but she's still going to have to get up on that stand and testify that she was sexually harassed. And Baldoni's side, who have vehemently denied this allegation since the case was filed, are still going to have to prove she was trying to wrestle creative control of the film using, among other alleged tactics, her very famous friends, which she has denied since the beginning.

1:16Shaun Kent:What is happening? Joining me now is our resident trial attorney, Sean Kent, to break this down for us. Hi, Sean. Hey, Anushka. How are you doing? I'm doing good. Sean's in all white today. You're looking very... It's more cream. Our series producer said you look angelic. I agree with that. And you're always so mean to me. And I'm always so nice to you. And I always compliment your hair. But you know what I say? I say looks can be deceiving. Oh, God. He's got a magazine from the 70s. And he's showing me the women's hair on it. And saying that it's comparable to my hair. And what? Nothing. I just was looking at Charlie's Angels.

1:46Shaun Kent:You could have been the fourth angel. Put this down. Because I've got to go and talk about Kanye and his crazy world in a second. So we're coming through this. We're going to hit all of the facts. you're going to understand exactly what is going on in this Blake Lively saga. I know it's been going on for what feels like forever, longer than the Diddy trial. But what's happened recently is really important, and it's going to change how the trial works. Sean, there was over 150 pages of the judge's judgment where he threw out the majority of Blake Lively's claims. He wrote this because one side asked for summary judgment.

2:18Shaun Kent:Just remind us, quick fire, what on earth is summary judgment? Very quickly, summary judgment is when a judge can look at an issue and said, there are no material issues of fact in dispute, and I can make a decision on this based upon the law. So in other words, they've come to the judge and said, judge, here are the facts that we both agree have happened. The judge like that's not into dispute. Here is the law. I can make a decision because what I don't want the jury to do is make an incorrect decision based upon the law, because the judge is the judge of the law. The jury is the judge of the facts.

2:53So if there are factual issues in dispute, that goes before the jury. If there's something that can be decided on the law, the judge is what we call the gatekeeper. He stops the gate and makes sure that we don't send stuff incorrectly to a jury. And that's what summary judgment is.

3:08Shaun Kent:Before the trial starts. Even in this case, they disagree on the facts. She says she was sexually harassed. He says she wasn't. But the judge has still made a determination based on the law. And I appreciate that you say that. They still disagree on whether or not she was sexually harassed. Justin Baldoni's like, we did not sexually harass you. She's saying, yes, you did. She's saying you created a hostile work environment. They're saying these things may have happened, but you are interpreting them incorrectly. That's what they're saying. But the judge is saying both of you agree certain things happened and you disagree on what it equated to.

3:42But before we even get to that, I can do legal analysis to make a decision whether or not that question should go in front of the jury or not.

3:50Shaun Kent:And so the judge has dismissed the bulk of Lively's case, throwing out her sexual harassment claims under federal and California law. I mean, 10 out of 13. People are saying it's a win for Justin Baldoni. This is a victory. Absolutely. And I harken back to things that you and I have talked about before. People think that just getting a trial in federal court is easy. This is a hard standard. A lot of these civil trials don't go to trial because it's hard to get over that burden. And so it is 100 percent a victory for Justin Baldoni in the respect that they don't have to battle 13 separate claims.

4:24However, they're still going to trial. He didn't throw out everything. The trial is still happening.

4:29Shaun Kent:And we're going to get to what's staying in and what that means. But I just want to zero in on the sexual harassment claim that's been thrown out because, you know, this was the bulk of the headlines. This was a big splash at the time. And it's the thing that Justin Baldoni and his PR team were fighting. They say fighting in a way that they're allowed to do throughout the press of the movie. Blake says she was the victim of gender-based sexual harassment on the set of It Ends With Us. That's the film that we're talking about. What Blake said the sexual harassment was is in her first complaint and her second amended complaint.

5:01Shaun Kent:Let's just remind ourselves of some of the things she was saying. It says in her complaint, quote, Mr. Baldoni insisted to Miss Lively that women give birth naked and that his wife had ripped off her clothes during labor. So this is a birthing scene in the film. We've gone over this many times. Blake says she was asked to simulate nudity without that being written down in her contract and pre-agreed. And she says there wasn't an intimacy coordinator present when that was happening. Justin Baldoni, it says in her complaint, claimed it was not normal for women to remain in their hospital gowns while giving birth.

5:27Shaun Kent:Miss Lively disagreed, but felt forced into a compromise that she would be naked from below the chest down. So this is one of the things she cites as an example of sexual harassment in her amended complaint. She says the set was crowded, chaotic, with no intimacy coordinator, and that Justin Baldoni then went to cast his personal friend as the OBGYN, which I call ob-gyn, and I know that I'm not supposed to do that. It's not how you say it. The OBGYN. Right. So Justin Baldoni has said from the beginning, this is a pattern of claiming sexual harassment, and that forms part of a larger pattern of her trying to wrestle creative control of the movie.

6:01Shaun Kent:In his response, he said, it is shameful that Miss Lively and her representatives would make such serious and categorically false accusations against Mr. Baldoni, Wayfarer Studios and its representatives. And they've accused Blake Lively of making numerous demands and threats, including threatening to not show up to set, threatening to not promote the film, which would end up ultimately leading to its demise during release if her demands were not met. They're saying she's trying to wrestle creative control. She's saying she was genuinely sexually harassed. What does the judge say? He says the crux of these claims, he's talking about the law here, the crux of these claims, these sexual harassment claims is that the defendants harassed Lively and subjected her to a hostile work environment on the basis of her sex and or gender.

6:40Shaun Kent:Lively's allegations center largely around conduct which occurred on the set of the film during the first phase of production in New Jersey. This on-set conduct occurred outside California and cannot support applying the statutes extraterritorially. That's lawyer speak. Sean, can you just translate that for me? Not complicated. We're talking about different areas. So even though we're in federal court, what the court is saying is your allegations, the contract, everything you're talking about talks about California law and things that happen in California. However, your pleadings in the fact are talking about things that happened in New Jersey.

7:15And so for us to make sure we go forward, we have to make sure that everything you're suggesting happens in the state that you pled to. All this stuff happened in New Jersey. California law controls. You don't get to get the benefit of being in one state, but using the laws in a different state. So you got to get out of it.

7:32Shaun Kent:So that's the territory issue. Now, the other half of this is something we've gone over pretty much every time we've spoken about this case. The judge says, quote, lively sexual harassment and retaliation claims under these provisions can therefore proceed only if she was an employee rather than an independent contractor. And the judge has deemed that she was an independent contractor and not an employee. Sean Blake Lively, in her complaint, goes a long way in trying to prove that she had the status of an employee, that Justin Baldoni was, yes, her co-star, but also her boss. But the judge has made the determination that she was an independent contractor.

8:05Shaun Kent:Then the natural question that everybody's had from that is, so independent contractors can't be sexually harassed? Yes. Under federal law, like to make it as simply as possible, because what we have to understand, And I'm giving you all the credit since the day we have started talking about this Blake Lively case. You have made it painful. If I can hear the word power dynamic in my sleep, she's the powerful one. She's the powerful one. She's the powerful one. It's almost like the court listened to you when they were writing their opinion. I was like, oh, great. Yeah, judge, strike that from the record.

8:34Shaun Kent:Strike that. They're not listening to me. Yeah. Now, the worst part about it is now Anushka is going to think she's right. And she's the great bastion of legal intelligence. Great. What do you mean now she's going to think that? Honey, I've been thinking that since the beginning. Touche. You know how I feel about judges' rulings. Yeah, I'm not even going to do that. Who gave you the authority to tell me that this is what's going to go down? Who are you? I am Anushka. I'm Anushka. I've never heard of you. I've never heard of you. Have you heard of me? But when you look at it, they really did focus on that.

9:03And we have to make sure we understand. And these are the things that are concerning me, Anushka, when we're reading social media and reading some legal pundits saying these things. The judge never came out and said she wasn't sexually harassed or she was. Okay. He never said that. And people keep getting confused on that. And the reason I'm bringing this up is I don't want individuals out there who are listening to think that if something's bad happened to them at work, they cannot go forward because they have been sexually harassed. What the court said is in this very limited situation, you are not an employee.

9:35You are an independent contractor. The purpose of sexual harassment law are to protect the little person, protect the person who needs a job, protect the person who cannot fight for themselves, protect the person that does not have their own voice. That's why we have sexual harassment laws, because what usually ends up happening, and you talked about, it's the power dynamic. It is a person who needs the job. The boss comes in and locks the door and says, you can either do this or, and the woman or the man is in a position like, I didn't have a choice. I didn't want to lose my job. They're saying independent contractors aren't in that position because they can simply leave and file a lawsuit saying that you have violated my contract.

10:16And so you have a right to leave. So these federal protections are for individuals who cannot protect themselves. And that's what the court said. They went down these greed factors and they looked at Blake Lively and they're like, you are in control. You make the most money. And these are all the things you've talked about. You make the money, you control, you complained. They made changes based upon your complaints. You're not a regular employee. You have significant power. And censure this. Your sexual harassment claims, whether they're true or not, cannot go forward in front of this jury. And that's what we talk about with summary judgment.

10:53Shaun Kent:Absolutely. Page 107 is the judge says, quote, in analyzing this issue, the court need not and does not determine whether the relevant conduct rose to the level of sexual harassment. That's not the judge's business. That's not his job. He said it doesn't meet the standard for the law and therefore the claim has been thrown out. But Sean, like you said, all over TikTok, Instagram, wherever you're looking, Reddit, Facebook, if you're still there, public consumption, public reading of this lawsuit has typically misunderstood that. and people have been running around saying that Blake Lively has lost because the judge has said she was not sexually harassed.

11:24Shaun Kent:My question to you is, I understand that the judge is writing this summary, what do you call it? Summary judgment judgment? Summary judgment order. Summary judgment order, period. The judge is writing the summary judgment order for the lawyers, for the parties. He's not writing it for public consumption. But we live in a legal landscape now where so many content creators who are working in the legal sphere are accessing court documents, are reading them, and are misreporting them. Is it time to put a section in legal documents that's like, here's this broken down for, I hate to say it, Joe Q. Public.

11:58Shaun Kent:I hate to use a shortism, but is this John Q. Public's section where I'm not saying she wasn't sexually harassed. I'm saying that legally they ain't filed this in a way that it can proceed. What do you think? No. I mean, I would be out of a job. You said different on the phone the other day. I know, because I'd be out of a job if they started doing that. And they need people like me to interpret what the courts are saying. I do understand that. And that's why I get fearful that people are out there saying the court says she wasn't sexually harassed. Because if we're not careful, then people will misread that order.

12:28And then they'll go to their employees and say, you see, she wasn't sexually harassed when I did this to her. So I can do this to you. That's not what the court's saying. People need to stop telling this to folks, because what we're going to do is chill women, chill women who feel as though they're being harassed at work and saying, well, they're allowed to do it to Blake. They're allowed to do it to me. That's just wrong. Sorry to get on my soapbox because I get very concerned when people do incorrect analysis. Apologize.

12:52Shaun Kent:Yeah, absolutely. But it is confusing. It really is. Because that sexual harassment claim is thrown out. But the retaliation claim is going forth to trial on May 18th. You know we're going to be there every day just like we did with Diddy. But as part of the retaliation claim, all of the allegations of sexual harassment come back in and are evaluated by the judge to determine whether Blake believed in good faith that she was being sexually harassed. So therefore she filed a complaint and that's the thing she says she was retaliated against for. Let's just remind ourselves what she says in her complaint.

13:27Shaun Kent:In paragraph 28 of her Second Amendment complaint, she says in regards to the retaliation, Mr. Baldoni and his Wayfarer associates embarked on a sophisticated press and digital plan in retaliation for Miss Lively exercising her legally protected right to speak up about their misconduct on the set with the additional objective of intimidating her and anyone else from revealing in public what actually occurred. That is what Blake's has alleged in her amended complaint. Now the judge's ruling says these claims involve Lively's allegation that the defendant subjected her to an adverse employment action by launching a coordinated campaign to cast her in a false light during the publicity and promotion of the film to discredit her in the event that she publicly disclosed her concerns about harassment and other unlawful conduct and to irreparably damage her career and future earning capabilities in direct retaliation for participation in protected activity.

14:22Shaun Kent:Whether these acts occurred and whether they amount to retaliation are not issues that the court must consider in connection with the issue of extraterritoriality. How the hell do you say that? You're pretty dang close. Extraterritoriality. That got worse there, so we'll just let it go. Expialidocious. So he says that. So it's not an issue of territory where the statutes are. That's not an issue because this one works. The only issue now is whether the core of the alleged wrongdoing possessed a sufficient nexus to California. Full stop, it did. So this conduct was close enough to California that it can be filed under that title or that code, and it is now proceeding to trial.

15:03Shaun Kent:But then, like I said, it gets confusing because he starts talking about sexual harassment again and he starts going through Blake Lively's claim. And what he's trying to determine is whether she had a good faith belief that she was actually sexually harassed. And he does go through in detail some of her allegations and points out where he thinks it's crossed the bounds that she would have the ability to have a good faith belief that she was being sexually harassed. He says, during the writing process, after Lively commenting that she believes some scenes have become quote somewhat pornographic.

15:33Shaun Kent:Baldoni volunteered in the course of claiming that the scenes were not pornographic that he had been previously addicted to pornography. Lively stated that she had never seen pornography and Baldoni later announced to individuals on set that Lively had never seen pornography. The judge says it may be fair grounds for an author or a director to discuss personal experiences including those related to sex as part of the creative process and the mere mention of sexual content or topics in the workplace does not necessarily support a hostile work environment, but Baldoni's on-set comment to crew members regarding whether Lively watched pornography bore no apparent connection to the creative process and singled Lively out in front of others in a way that could be interpreted as relating to sex and based on gender.

16:15Shaun Kent:He goes on to say, the court need not consider whether the acts as alleged would support a jury verdict that the wayfarer parties created a hostile work environment under FEHA or Title VII. then it is sufficient that it was reasonable for Lively to believe that they did. So she believed that she did face a hostile work environment, that she was sexually harassed. And she filed that complaint in good faith. And that is what they retaliated against, is what the judge is saying. There's potential for a jury to deem that it was retaliatory action. That last part was the perfect part. It's potential for a jury to decide.

16:47It's not the judge saying yes. It's not the judge saying no. But as the gatekeeper, he's like, there's enough material issue in dispute that we should send this in front of the jury.

16:57Shaun Kent:Yeah. And he goes through it. He doesn't find that all of her examples are relevant and would create an environment where she could believe that she was being discriminated against on the basis of gender. But he does go through a few where he says, yep, here there is a potential for a jury to hear this and believe that Blake believed she was being sexually harassed. So even though the sexual harassment claim has been dismissed, because the retaliation is going forward, Sean, aren't they still going to testify on the stand? Blake's going to have to get up there and describe what she thought the sexual harassment was.

17:25Shaun Kent:Talk about why she felt it was happening to other people on the set. They can bring in other women who have corroborated Blake Lively's claims about the set being unsafe in some circumstances or a hostile work environment for women in some circumstances, because that speaks to her belief that there was an issue on this set, which leads to her filing her official complaint. but Justin Baldoni's side also need to prove that she was trying to wrestle creative control so he still has to bring in the text with Taylor Swift where they talk we call him a doofus and they talk about oh just tell him you like these pages so that he'll go with my version all of that's still in there because it's all part of the retaliation claim you hit the nail on the head when we talk about trials we have elements and one of the first elements as you just mentioned that she's going to have to prove is that she reasonably believed this happened and to prove that it reasonably believe it happened and it's not baseless.

18:15She's going to have to go through everything that happened and try to show that this created the environment and tell the court, use the court's language, the totality of the circumstances. Yes, one incident by itself, I might be being sensitive, but this is 14 different incidents. And let me put all these people there. And that's the first part of her claim. And that's what she has to prove. And you and I talked about this. They'll be bringing motions in limine, Justin's team will, to try to exclude stuff that they believe is baseless based upon the court's order and things of that nature. So it's going to be going back and forth trying to limit what the jury hears.

18:50But I think you're exactly right. I think it's all coming in. The counts have been dismissed. The sexual harassment has been dismissed. However, that's still going to be the testimony at trial because it's necessary to prove the elements of retaliation.

19:06Shaun Kent:It's in the judge's instructions, right? You're going to hear about this. You're not making a determination on if she was sexually harassed. You're making a determination on if she believed she was. And she filed that complaint in good faith of that belief. Possibly. And that's what they're going to argue about when they get to. You remember from the Diddy trial when they battled back and forth on what are the jury instructions that are going to be given and the jury charges. So that's going to be a very large battle on what the jury's allowed to be told when they go back to deliberate and make their decision.

19:32Shaun Kent:Blake Lively has put out a rather long statement, and it's the longest one we've had from her in a while after the dismissal of 10 of her claims. And the statement was positive. It was, you know, I'm happy this is going to trial. I'm looking forward to getting up on the stand and testifying and speaking my truth because my real claim, the reason why this lawsuit was filed was because of what she deems to be the retaliatory activities, the PR machine, she says, that was working to destroy her reputation. In a statement given to the BBC, a member of Lively's team says she has always been and will remain focused on the devastating retaliation and the extraordinary steps the defendants took to destroy the actress's reputation.